Monday, December 2, 2013
That's the question before the Supreme Court today in Michigan v. Bay Mills Indian Community. More particularly, the case asks whether the federal courts have jurisdiction to hear a state's claim that a Native American tribe's off-reservation casino violates the Indian Gaming Regulatory Act, and whether the tribe enjoys immunity from such a suit.
With the rapid proliferation of tribal gaming, including off-reservation gaming, the case could make an important statement about the regulatory authority of the tribe, the state, and the federal government over off-reservation gaming. It could also make an important statement about federal court jurisdiction over a state's claim that a tribe's off-reservation gaming violates federal law, and about tribal immunity for such gaming.
Here's my oral argument preview of the case, republished, with permission, from the ABA Preview of U.S. Supreme Court Cases:
Congress enacted the Indian Gaming Regulatory Act of 1988 (IGRA) in order to regulate gaming activities on “Indian lands.” The IGRA divides gaming into three separate classes and specifies how each class is regulated. Class I gaming includes social games and traditional tribal games; it is under the exclusive jurisdiction of the tribe. Class II gaming includes bingo and certain card games like poker; it is primarily within the jurisdiction of the tribe but subject to federal oversight.
Class III gaming, the class at issue here, includes everything else, such as slot machines and casino-style games. Class III gaming is not regulated by a uniform structure. Instead, an Indian tribe wishing to conduct Class III gaming has to adopt a gaming ordinance that is approved by the National Indian Gaming Commission (NIGC), a federal agency. The tribe also has to negotiate with the state where it is located and enter into a compact that will govern the gambling.
The Bay Mills Indian Community, a federally-recognized Indian tribe with a reservation in Michigan’s northern peninsula, entered into a compact with Michigan in 1993. Soon after the compact was finalized, the NIGC approved Bay Mills’s gaming ordinance. Bay Mills then proceeded to establish its own Gaming Commission. Bay Mills has continuously operated one or more gaming facilities on its reservation ever since.
In 1997, Congress passed the Michigan Indian Land Claims Settlement Act. The Act appropriated funds to Bay Mills and other Michigan Indian tribes to satisfy judgments that the Indian Claims Commission had entered in favor of the tribes. The Settlement Act directed that 20 percent of the funds awarded to Bay Mills be deposited in a “Land Trust” and required that earnings from the Trust “be used exclusively for improvements on tribal land or the consolidation and enhancement of tribal landholdings through purchase and exchange.” It also said that “[a]ny land acquired with funds from the Land Trust shall be held as Indian lands are held.”
In August 2010, Bay Mills used the funds from the Settlement Act land trust to purchase approximately 40 acres of land in Vanderbilt, Michigan, about 100 miles from the Tribe’s reservation. Bay Mills constructed a small casino on the property (initially with 38 electronic gaming machines, but later expanded to 84 machines) and began operating it on November 3, 2010. The U.S. Department of the Interior and the NIGC later issued letters concluding that the Vanderbilt casino was not located on “Indian lands” as defined by the IGRA, that it was therefore not eligible for gaming under the IGRA, and that the NIGC had no jurisdiction over it.
The state filed suit against Bay Mills in federal court. The state’s counts I and II alleged that the Vanderbilt land did not constitute “Indian lands” under the IGRA, and that Bay Mills therefore violated the compact. The state’s count III alleged that Bay Mills violated the IGRA by conducting gaming outside of Indian lands and that even if the Vanderbilt land constituted “Indian lands,” Bay Mills violated 25 U.S.C. § 2719 (and therefore the compact’s requirement that gaming comply with federal law) by operating a gaming facility on land acquired after October 17, 1988, that does not satisfy any statutory exception. The Little Traverse Bay Bands of Odawa Indians, which operated a competing casino about 40 miles away, filed a separate suit with similar claims the next day.
The district court consolidated the cases and entered a preliminary injunction halting the Bay Mills casino. Bay Mills appealed and moved for a stay of the injunction; the district court and the United States Court of Appeals for the Sixth Circuit both denied a stay.
While Bay Mills’s appeal was pending, the state amended its complaint to add three additional claims. Count IV alleged that Bay Mills violated federal common law by operating a casino that exceeds the scope of its authority. Count V alleged that Bay Mills failed to obtain a state license for a gaming facility in violation of Michigan law. Count VI alleged that the casino was a public nuisance under state law. The state also added several defendants—the Bay Mills Tribal Gaming Commission, the Commission’s members in their official capacities, and the members of the Bay Mills Executive Council in their official capacities.
On appeal, the Sixth Circuit reversed and vacated the preliminary injunction. The court held that the district court lacked jurisdiction as to counts I, II, and III. The court held that the district court had jurisdiction as to counts IV, V, and VI against Bay Mills, but that those counts were barred by tribal sovereign immunity. The court remanded the case to the district court to address the state’s counts IV-VI against the additional individual defendants.
The state brought this appeal. Little Traverse is not a party to it; neither are the individuals named in the state’s amended complaint.
Federal courts are courts of limited jurisdiction. This means that their jurisdiction must be defined by statute. One common source of federal jurisdiction is found in 28 U.S.C. § 1331, which creates the so-called “federal question” jurisdiction. Under § 1331, federal district courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.”
Another source of federal jurisdiction—one that goes particularly to gaming on Indian lands—is found in 25 U.S.C. § 2710(d)(7)(A)(ii), part of the NIGC. That provision says that federal district courts have jurisdiction over “any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact . . . .”
The parties here dispute whether the federal courts have jurisdiction over the state’s claims. In particular, they dispute whether the state’s claims arising out of the Bay Mills’s alleged violation of the compact fall under § 1331 (because these claims might amount to a violation of the IGRA, a federal statute), and whether the Vanderbilt casino is “a class III gaming activity located on Indian lands” under § 2710.
But even if a federal court has jurisdiction (under §§ 1331, 2710, or some other federal statute), certain parties, like Indian tribes, enjoy immunity from suit. The Supreme Court has recognized tribal sovereign immunity, and both parties agree that “the doctrine is now part of this Court’s settled precedent . . . .” But they disagree sharply over the extent of that immunity.
The state argues first that the district court has jurisdiction over its suit pursuant to § 2710. The state says that the Vanderbilt casino is “a class III gaming activity located on Indian lands,” because Bay Mills authorized, licensed, and operated the casino from its reservation. More particularly, it contends that § 2710 extends federal court jurisdiction to the gaming itself, but also to the gaming activity, which, the state argues, includes authorizing, licensing, and operating the casino. The state claims that its interpretation of the text is consistent with the congressional intent.
The state argues next that the district court has jurisdiction over its federal claims pursuant to § 1331. The state says that it alleged a violation of the IGRA, a federal statute, when it claimed that Bay Mills violated the compact (in counts I, II, and III). It also says that nothing in the IGRA limits the federal courts’ federal question jurisdiction under § 1331.
The state argues that tribal sovereign immunity does not bar its suit for two independent reasons. First, the state contends that the IGRA abrogated tribal sovereign immunity. The state says that the Court uses a “more holistic approach” in determining whether a federal statute abrogates tribal sovereign immunity, and that the IGRA viewed as a whole (and not just § 2710) makes clear that Congress intended that a state could enforce its gaming laws in federal court against an Indian tribe engaged in off-reservation gaming. The state claims that the opposite rule would lead to an absurd result—that the state could obtain a federal court injunction to stop illegal gaming on Indian lands, but not on its own sovereign state lands. The state says that Congress could not have intended this result.
Second, the state argues that even if the IGRA does not abrogate tribal sovereign immunity, the Court should decline to extend immunity here. The state says that the Court has never expressly extended tribal immunity to a tribe’s off-reservation commercial activities, and, especially given tribal immunity’s “dubious foundation,” the Court should decline to extend it to those activities in this case.
In response, Bay Mills first argues that the state cannot claim that the Vanderbilt casino is “on Indian lands,” as it does in its first point. Bay Mills says that that argument falls outside the questions presented, which speak solely to gaming activities “outside of Indian lands.” But even if this argument were properly before the Court, Bay Mills contends that the state is wrong: the IGRA itself says that a tribe’s decision to open a gaming facility is not a “class III gaming activity.”
Next, Bay Mills argues that it is immune from Michigan’s suit under § 1710. Bay Mills claims that § 1710 only abrogates tribal sovereign immunity “on Indian lands,” and that the whole premise of the state’s claim is that the Vanderbilt casino is off Indian lands. Bay Mills says that under the plain language of § 1710, “Michigan has simply pled itself out of court.”
To the extent that Michigan and its amici argue for a Court-created exception to tribal sovereign immunity, Bay Mills argues that the Court has already rejected the proposed exceptions. Bay Mills also says that the Court has rejected pleas to overrule its tribal sovereignty immunity precedents. Bay Mills contends that it is Congress’s prerogative, not the Court’s, to alter the scope of tribal sovereign immunity, and that Congress has only reaffirmed it. Bay Mills claims that tribal sovereign immunity “has deep roots in this country’s jurisprudence,” and that there is no reason for the Court to abrogate it now.
Finally, Bay Mills argues that the Ninth Circuit decision will not leave the state without a remedy, as the state argues. Bay Mills says that Michigan most obviously can invoke the dispute resolution procedure in the compact. Bay Mills claims that Michigan could also sue tribal officials for injunctive relief. Additionally, Bay Mills argues that the state could negotiate a waiver of sovereign immunity in the next round of compact negotiations, seek federal intervention in the dispute, or even outlaw gaming throughout the state.
The federal government, as amicus in support of Bay Mills, also argues that the federal courts lack jurisdiction over Michigan’s claims. The federal government says that § 2710 does not extend jurisdiction of the state’s claims to the district court. Contrary to the state’s argument, the federal government says that numerous provisions in the IGRA demonstrate that the phrase “class III gaming activities” refers to the games themselves, and not to authorizing, licensing, and operating games. And because the games themselves are not located on Indian lands, § 2710 is not a basis for jurisdiction. Moreover, the federal government says that § 1331 does not extend jurisdiction, because the state’s federal claims (counts I, II, and III) do not fall within § 2710, and because the compact does not contain a provision agreeing to federal court review of the state’s other claims.
Next, the federal government argues that Bay Mills enjoys tribal sovereign immunity. The federal government says that § 2710 did not abrogate sovereign immunity, because the state alleged that the Vanderbilt casino is not on Indian lands. The federal government contends that 18 U.S.C. § 1166 also does not abrogate sovereign immunity, because that statute gives the federal government (not the states) enforcement authority in Indian lands for violations of assimilated state gambling laws. The federal government says that § 1166 does not give states authority to enforce state gambling laws outside Indian lands, and even less to sue the tribe itself. The government contends that tribal sovereign immunity already extends to a tribe’s commercial activities wherever they take place, and that the Court should leave it to Congress to balance the interests of the tribes and the states and to determine the scope of immunity.
Finally, the federal government argues that Michigan has other remedies. Like Bay Mills, the federal government says that the state could seek injunctive relief against an individual tribal official. The federal government claims that the state could also negotiate a waiver of sovereign immunity in the compact. Moreover, the federal government contends that the state could request approval from the NIGC of a site-specific gaming ordinance for the Vanderbilt casino, forcing the NIGC to determine whether the site is eligible for gaming, and appeal the decision in court. Finally, the federal government notes that the state can enforce its own gaming laws against individuals involved in gaming at the Vanderbilt casino. With all these options, the federal government argues that there is no need to diminish tribal sovereign immunity to create a remedy that would resolve this dispute.
At its core, this case is about the allocation of power between states and Indian tribes over the operation of an activity, tribal-sponsored gambling, that has seen astonishing growth in recent decades and today is worth tens of billions of dollars nationwide. (The NIGC tracks this growth in Gaming Revenue Reports, available at http://www.nigc.gov/Gaming_Revenue_Reports.aspx.) Both Indian tribes and states use legalized gaming more and more for revenue, economic development, and economic activity and opportunity. Within this broader context, the regulation of tribal gaming, even at the margins, is itself a high-stakes game.
To be sure, this case deals with only a small part of this larger question, that is: off-reservation gambling. And it involves only special federal jurisdictional and immunity questions that come up in the particular case when an Indian tribe purchases land to build an off-reservation casino.
Still, in the rapidly growing sector of Indian gaming, the case already matters. As Michigan indicates, it “is already aware of at least three additional lawsuits where parties have cited the Sixth Circuit’s decision here in support of a tribe’s operation (or planned operation) of a casino in violation of IGRA or tribal-state gaming compacts.” The state notes that “[a]s tribes continue to look for better casino locations . . . or new ways to profit from the explosion of casino gaming, the friction between state authority and tribal immunity will inevitably increase.” That’s not to say that Michigan’s positions in the case are (necessarily) right, but only that the issues are already significant, and only likely to grow in importance.
Moreover, the issues are highly controversial. On the one hand, many favor expanding off-reservation gaming opportunities, because Indian tribes and states can use off-reservation gaming to generate more revenue and economic development in more attractive locations off the reservations (like closer to urban centers). On the other hand, many oppose off-reservation gaming, because it encroaches on local communities. The debate is playing out in communities across the country where Indian tribes are seeking permission to conduct off-reservation gaming. The debate is also playing out in Washington, where the Obama administration moved in 2011 to loosen requirements for some off-reservation gaming, and where some in Congress have introduced legislation to tighten them. Again, this case sits right at the center of these debates.
Whatever happens in this case, though, it cannot change the basic statutory framework under the IGRA: Indian tribes will still have to adopt a gaming ordinance and negotiate a compact with the state. The compact requirement ensures that both states and Indian tribes will have a significant hand in regulating casino-like tribal gaming. But the outcome of the case may affect how Indian tribes and states negotiate their compacts and the terms they include in them.
It is important to remember that the Department of the Interior and the NIGC issued opinions that the Vanderbilt casino was not on “Indian lands” and was therefore not eligible for gaming under the NGRA. The federal government does not disavow these opinions. Indeed, the federal government sets out an array of options for Michigan to regulate the Vanderbilt casino (and other future casinos), notwithstanding (as the federal government argues) the federal courts’ lack jurisdiction over the state’s claims and Bay Mills’s immunity from suit. In other words, the Sixth Circuit ruling does not mean that Bay Mills can operate its casino, or that other tribes could operate like casinos off reservation, without at least some state and federal oversight and permission.
Finally, the case is significant because it will resolve splits in the circuits. There is disagreement among the circuits on both questions presented—the scope of federal jurisdiction, and the scope of tribal sovereign immunity.
Wednesday, November 13, 2013
In a 15 page opinion (with extensive appendices) issue late Wednesday, In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., the Second Circuit clarified its removal of Judge Shira Scheindlin, which we discussed here. Calling her a "long serving and distinguished jurist of the United States District Court for the Southern District of New York," the Second Circuit panel nevertheless again concluded that "reassignment is advisable to preserve the appearance of justice."
Recall that the underlying controversy involves Judge Shira Scheindlin's orders in Floyd v. City of New York and in Ligon v. City of New York regarding the NYPD's implementation of stop and frisk as violative of equal protection.
In today's opinion, the panel
"explains the basis for our order of October 31, 2013, directing the reassignment of these cases to a randomly selected district judge and supersedes that order. To reiterate, we have made no findings that Judge Scheindlin has engaged in judicial misconduct. We conclude only that, based on her conduct at the December 21, 2007 hearing and in giving the interviews to the news media in May 2013, Judge Scheindlin’s appearance of impartiality may reasonably be questioned within the meaning of 28 U.S.C. § 455 and that “reassignment is advisable to preserve the appearance of justice.”
The explanation stresses that the opinion is based on the appearance of partiality rather than any "findings of misconduct, actual bias, or actual partiality on the part of Judge Scheindlin." Again, this appearance of partiality is twofold. First, there are the judge's statements on the record in a related case. After quoting some of the statements, the panel concluded:
We believe that a reasonable observer viewing this colloquy would conclude that the appearance of impartiality had been compromised. We do not mean to suggest that a district judge can never engage in a colloquy with a party during which the judge advises the party of its legal or procedural options. However, we think, particularly in combination with the public statements described below, that a reasonable observer could question the impartiality of the judge where the judge described a certain claim that differed from the one at issue in the case before her, urged a party to file a new lawsuit to assert the claim, suggested that such a claim could be viable and would likely entitle the plaintiffs to documents they sought, and advised the party to designate it as a related case so that the case would be assigned to her.
Second, the panel considered - - - as the "statements described below" - - - the judge's statements to the press. While the panel noted the judge "did not specifically mention the Floyd or Ligon cases in her media interviews," nevertheless, the context was critical. And while "nothing prohibits a judge from giving an interview to the media,"
judges who affiliate themselves with news stories by participating in interviews run the risk that the resulting stories may contribute to the appearance of partiality. It is perhaps illustrative of how such situations can get out of the control of the judge that, later in The New Yorker piece, the article quotes a former law clerk of Judge Scheindlin: “As one of her former law clerks put it, ‘What you have to remember about the judge is that she thinks cops lie.’”
The panel opinion does not reference the First Amendment. The panel did, however, reference the Code of Conduct for United States Judges, but only to disavow its mention in the earlier order. Here, the Second Circuit panel of judges wrote,
We now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and Disability Act. . . .
But as to the removal - - - or reassignment - - - the panel again found this to be the proper remedy. Reassignment, the panel wrote, "while not an everyday occurrence, is not unusual in this Circuit." In support of this, the panel cited nine cases from 1999 - 2011. The panel also noted it occurs in other circuits. [UPDATE: For scholarship on this topic, see here].
Thus, the opinion softens some of the original language, expanding on the relatively brief previous order, but does not waver from the conclusion or remedy. If the original order was a "slap" as some people characterized it, this replacement is more of a stern lecture rendered in patronizing and disappointed tones.
Wednesday, October 23, 2013
Judge Colleen Kollar-Kotelly (D.D.C.) dismissed a separation-of-powers challenge to the Consumer Financial Protection Bureau, an independent agency created by Dodd-Frank that's tasked with the responsibility for "ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive." (This case challenges the CFPB on separation-of-powers grounds. We most recently posted on the other challenge to the recess-appointed head of the CFPB here. The recess appointment question is heading to the Supreme Court in Noel Canning.)
But the order dismissing the case in the D.C. District didn't touch the merits, and the plaintiffs in the D.C. case will undoubtedly raise the same constitutional claims in the underlying enforcement action against them in the Central District of California.
The case, Morgan Drexen, Inc. v. CFPB, arose after the CFPB filed an enforcement action against Morgan Drexen in the Central District of California. Morgan Drexen and its "attorney-client" then filed for injunctive and declaratory relief in the D.C. District, seeking to halt the enforcement action in the Central District of California, arguing that the CFPB violates constitutional separation-of-powers principles. The result: two parallel cases in two different courts, one enforcement action and one facial challenge, challenging the CFPB on constitutional grounds.
Update: Morgan Drexen filed in the D.C. court before the CFPB filed its case in California.
But Judge Kollar-Kotelly didn't bite. Instead, the court ruled that injunctive and declaratory relief in the D.C. District would be inappropriate with the case pending in California--and that Morgan Drexen could obtain complete relief on its claim there. (The court said that ruling on the matter would frustrate both the final judgment rule (because Morgan Drexen could immediately appeal a D.C. District ruling on the merits, but not a ruling from the Central District of California denying a motion to dismiss on constitutional grounds) and the principle of constitutional avoidance (because the Central District of California could dodge the constitutional issues and rule on other grounds, but the D.C. District case would force the court to address the constitutional claims). The court also ruled that declaratory relief was inappropriate.
The court held that Morgan Drexen's "attorney-client" lacked standing, becuase she couldn't point to specific or generalized interference with the attorney-client privilege, or any other harm in the CFPB's investigation or enforcement action against Morgan Drexen.
The case ends this collateral piece of the litigation, but it doesn't end the enforcement action, still pending in the Central District of California. Morgan Drexen raises the same constitutional claims, and other statutory claims, as defenses in that case.
October 23, 2013 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 22, 2013
The meaning of "United States" if often not as clear as one might assume, demonstrated by much of the litigation surrounding Guantanamo Bay (which is geographically if not politically in Cuba).
Over at Lawfare, law student Raffaela Wakeman has a good description (and audio) of the oral arguments in Al Janko v. Gates before the DC Circuit. She also has a good preview of the argument. Al Janko is seeking damages for his detention at Guantanamo Bay, which was determined to be unlawful by a federal district judge.
This requires the court to construe the jurisdiction-stripping provision of the Military Commissions Act, §2241(e)(2), which reads: “no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”
In short, does a federal judge's determination that Al Janko was not properly detained count as a determination by "the United States"? The Government argues that it does not and that in this statute, United States means only the Executive (Al Janko's detention was determined to be proper by Combatant Status Review Tribunals).
There are constitutional issues raised by the Bivens claim, but these tend to be backgrounded by the statutory interpretation issue of the meaning of "United States."
[image: map via]
Wednesday, October 16, 2013
Foreign Intelligence Surveillance Court Presiding Judge Reggie Walton wrote to Senators Leahy and Grassley this week that "24.4% of matters submitted [to the FISA court] ultimately involved substantive changes to the information provided by the government or to the authorities granted as a result of Court inquiry or action." Judge Walton wrote that "[t]his does not include, for example, mere typographical corrections." The figure comes from a three-month study of FISA court matters, between July 1, 2013, and September 20, 2013, but Judge Walton wrote that "we have every reason to believe that this three month period is typical . . . ."
The letter is a follow up to a letter that Judge Walton sent to the Judiciary Committee on July 29, 2013 (included after the most recent letter). It doesn't say how many matters the FISA court dealt with during the three-month period or give any other details. It does say, however, that the FISA court will continue to collect statistics.
The two letters come amid continued scrutiny of the FISA court, following criticism this summer after the Snowden release. The Senate Judiciary Committee held an oversight hearing on the FISA earlier this month. In his opening remarks, Senatory Leahy described features of his bill, S. 1215, the FISA Accountability and Privacy Protection Act of 2013:
Our legislation would end Section 215 bulk collection. It also would ensure that the FISA pen register statute and National Security Letters (NSLs) could not be used to authorize bulk collection. . . .
In addition to stopping bulk collection, our legislation would improve judicial review by the FISA Court and enhance public reporting on the use of a range of surveillance activities. The bill would also require Inspector General reviews of the implementation of these authorities . . . .
Senator Leahy's bill doesn't include the new privacy advocate that has gotten so much attention. That office, dubbed the Office of the Constitutional Advocate, is in Senator Wyden's S. 1551.
Tuesday, October 15, 2013
Given the procedural problems in the case as we discussed after oral argument last Monday, not surprisingly the United States Supreme Court dismissed the writ of certiorari as improvidently granted.
Wednesday, October 9, 2013
The Ninth Circuit ruled this week in Hamad v. Gates that the Military Commissions Act of 2006 deprived federal courts of jurisdiction over a Guantanamo detainee's claim that his detention violated the Constitution.
In so ruling, the Ninth Circuit joins the D.C. Circuit in holding that 28 U.S.C. Sec. 2241(e)(2) deprives federal courts of jurisdiction over these kinds of claims, even as the Supreme Court in Boumediene struck the habeas jurisdiction-stripping provision in 28 U.S.C. Sec. 2241(e)(1).
The MCA, 28 U.S.C. Sec. 2241(e), says:
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The Supreme Court struck 2241(e)(1) in Boumediene. The question in Hamad is whether 2241(e)(2) survived.
The Ninth Circuit said yes, joining the D.C. Circuit. The rulings mean that Guantanamo detainees are cut off from the federal courts in all but habeas cases (under 2241(e)(1)).
Wednesday, October 2, 2013
The Supreme Court today agreed to hear a case pitting mandatory union fees for non-members against non-members' free speech and free association rights. The case, Harris v. Quinn, is the second time in recent years that the Court will consider the issue. (Our original post on Harris is here.) And if the signals from its first case, Knox v. SEIU, are any indication, we can expect that the Court will continue to chip away at, even eviscerate, public-sector union power.
Harris involves an Illinois law that requires home-health-care personal assistants who are not members of the assistants' designated union to pay union dues for union activies such as collective bargaining (but not for politics and other non-union activities). The Supreme Court has long allowed this kind of mandatory fee for non-members of public sector unions (going back to Abood v. Detroit Board of Education) in the interest of preventing free riding by non-members. (If non-members could get by without paying union-related fees for activities like collective bargaining, then nobody would become a member. Why? Because non-members could enjoy the benefits of the union without paying any fees. But if that happened, then the union's funding stream would dry up, and the union would cease to exist. Thus the rule makes sense for union-related activities. But the Court drew the line at non-union-related activities, like politics, where mandatory fees for non-members would compel a political association to which they objected.) Because the Supreme Court has long allowed this kind of mandatory fee, the Seventh Circuit upheld the fee in Harris. (There was just one twist: personal assistants look a little like state employees and a little like personal employees of the patients they serve, or state contractors. The Seventh Circuit ruled that they were state employees.)
The Court now will review that ruling. But it doesn't start from scratch. That's because the Court ruled in Knox in 2012--after the Seventh Circuit handed down Harris--that a public union couldn't use an opt-out procedure for special assessment fees for non-members for non-union activities; instead, the Court said it had to use an opt-in procedure. In other words, the Court ruled that the state couldn't require non-members to pay the special assessment for non-activities but opt out; instead, the state could only allow non-members to opt in.
Knox dealt with a seemingly narrow issue--opt-out or opt-in for special assessments for non-union activities. But by requiring opt-in, and thus setting the baseline as no fee assessments for non-union activities for non-members, the case was a blow to union power.
But more: the Knox opinion (penned by Justice Alito) included strong language suggesting that the broader Abood rule violated free speech and free association. That is, Knox comes very close to saying that states can't require non-members to pay even for union activities--even though that question wasn't before the Court.
In other words, the Court in Knox sounded like it was just waiting for a case to give it a chance to overturn the Abood rule that non-members can be assessed fees for union activities.
Harris might just be that case. If so, Harris could represent a big blow to public union power. Indeed, depending on how the Court might rule, it could mark the beginning of the end of public unions (if the beginning hasn't already happened). That's because a rule that allows non-members to dodge fees for collective bargaining and other union activities--that is, to free ride on the union--would give a strong incentive for everyone to bail out of the union.
The Court could rule differently, though--on Abood's application to independent contractors and even to the private sector--and that's where the facts matter. Remember that the Seventh Circuit said that personal assistants were state employees, but that they also look a little like private employees. Abood applies to public employees, and the Seventh Circuit was clear that "we do not consider whether Abood would still control if the personal assistants were properly labeled independent contractors rather than employees." "And we certainly do not consider whether and how a state might force union representation for other health care providers who are not state employees, as the plaintiffs fear." Op. at 15. This kind of ruling could represent a significant blow to union power, too.
Either way, Knox put the handwritting on the wall. Harris may just be the case to take on the long-standing rule that states can require non-members to pay union dues for union activities in order to avoid free riders. If the Court reverses this rule, or even just chips away at it, the case will be a significant blow to unions.
There's another question in Harris. One group of personal assistants in Illinois, operated under a different state department, voted not to organize; they therefore do not have to pay any fees. The Seventh Circuit ruled that their claim wasn't yet ripe. This, too, is before the Court.
Monday, September 30, 2013
Judge Amy Berman Jackson (D.D.C.) today denied AG Eric Holder's motion to dismiss a case brought against him by the House Oversight and Government Reform Committee seeking to enforce its subpoena for documents related to DOJ's infamous February 4, 2011, letter denying that gun-walking in the "fast and furious" program had taken place. (The subpoena wasn't over the "fast and furious" program itself; instead, it was for any documents related to the government's February 4 denial.) Our latest post on the case, with background and links to earlier posts, is here.
Judge Jackson ruled in Committee on Oversight v. Holder that the case is justiciable, and that there's no good reason for the courts to decline to hear it. The ruling doesn't touch the merits.
The ruling means that the case will move forward on the merits question--whether executive privilege protects the subpoenaed documents--unless the parties settle.
Judge Jackson wrote that the case was a straightforward application of Committee on the Judiciary v. Miers:
And five years ago, another court in this District carefully considered and rejected the same arguments being advanced by the Attorney General here. In a case involving a different Congress and a different President, [Miers], the court concluded in a persuasive opinion that it had jurisdiction to resolve a similar clash between the branches.
Op. at 4.
September 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Privilege, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Sunday, September 15, 2013
Teaching and learning Marbury v. Madison (1803) can be challenging. As Steven Schwinn has highlighted, I've presented at AALS on innovative ways to use powerpoint using Marbury as an example. And I've also authored the CALI Lesson on Marbury v. Madison, which stresses understanding the case's historical importance and recognizing its use in contemporary constitutional litigation.
Marbury v. Madison is not only iconic, it's ironic. One way to have students "own" the irony is to have them create a single powerpoint slide that represents the meaning of the case's ironies. This is no easy task. In The Ironies of Marbury v. Madison and Marshall's Judicial Statesmanship, 37 J. Marshall L. Rev. 391(2004), Con Law Prof Samuel Olken explained the various levels of irony in the decision, but the central one on which we focus in class is Marshall's solidifying the (greater) power of judicial review to declare an act of Congress unconstitutional by refusing the power of jurisdiction granted by Congress to issue a writ of mandamus to Marbury.
But students are not limited to powerpoint slides; they can use any creative way to portray their point.
This year, two students, Daniel McCarey and Chloe Serinsky submitted a composition and posted it on You Tube where it will join the ranks of other takes on Marbury, from a serious talking head version to the explicit language rap version that we also discussed.
Their version is indebted to Alanis Morissette's song "Ironic" and arguably uses irony in a more correct (if more legal scholarly) sense.
They've posted their lyrics on the You Tube site. The description of judicial power as having "more juice" is nice, isn't it? But I do love this:
Statute in the left hand
Constitution in the right
Judicial review was the power
To strike that statute outta sight
A different group of five other students also took a musical tack. Collaborating, 1L students Alexandra De Leon, Alexandria Nedd, Carolina Garcia, Steffi Romano, and Vincce Chan, submitted a power point slide with the music from Drake's song
and their rewritten lyrics for a composition now entitled "From the Congressional Dream to the Judicial Machine." Here's a sample:
Congress just wants credit where it’s due
You say it’s written in the constitution…says who?
Extending the Supremacy Clause was Marshall's
Refusing Section thirteen to keep the appellate and not the original jurisdiction
Declining more power, but acquiring Judicial greatness
Marshall limited Legislative power by striking down the excess
Oh how ironic,
Refusing power made the Supreme Court iconic ...
Friday, August 30, 2013
The ACLU earlier this week filed a motion for a preliminary injunction in ACLU v. Clapper, the case in the Southern District of New York challenging the NSA's mass collection of Americans' telephone data. We most recently posted on the NSA program, in EFFs suit against it, here.
The ACLU argues that it has a substantial likelihood of success on its Fourth and First Amendment challenges to the NSA program. The group also argues that the government exceeded its statutory authority under Section 215 of the Patriot Act in collecting telephony metadata.
At the same time, the government filed a motion to dismiss. The government claims that the ACLU lacks standing (under Clapper v. Amnesty International), that Congress impliedly precluded judicial review of the NSA program, that the NSA program is authorized by Section 215 of the Patriot Act, and that the program doesn't violate the Fourth and First Amendments.
Standing will certainly be an important threshold issue in the case, especially after the Court's ruling in Amnesty International. In that case, the Court ruled that a group of attorneys and organizations didn't have standing to challenge the FISA Amendments Act, which allowed the Attorney General and the DNI to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be outside the United States. The Court said that the plaintiffs' alleged injury-in-fact was too speculative--that the plaintiffs couldn't show that they'd be targets of surveillance under this FISA authority, that the FISA court would necessarily approve the surveillance of them, or that the government would succeed in its surveillance of them.
Here, in contrast, the ACLU alleged in its complaint that its telephone communications were and are monitored, that this monitoring would reveal privileged and sensitive information between the ACLU and its clients, and that the monitoring will likely have a chilling effect on the group's communications with clients. In other words, the ACLU tried to navigate the Amnesty International barrier and show with more determinacy that it has suffered a sufficient injury in fact.
August 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0) | TrackBack (0)
Tuesday, August 27, 2013
The United States District Court for the District of Columbia ruled today in Burns-Ramirez v. Napolitano that a Secret Service Agent's Title VII claim based on her co-workers' alleged false statements about her, which led to the revocation of her top security clearance, can go forward. But the court was clear that it can't rule on the underlying agency decision to investigate, suspend, or revoke the plaintiff's security clearance; it can only rule on the plaintiff's claim that agency employees acted with discriminatory or retaliatory motive by making false reports to agency decisionmakers, knowing that those reports were false.
The ruling grows out of a Secret Service Agent's Title VII claims against DHS for suspending her top secret security clearance based on alleged statements by her co-workers that were false, discriminatory, and in retaliation for her earlier complaints about harassment and retaliation. The Service ultimately revoked her top secret security clearance, which led to her termination as an Agent. (You need a top secret security clearance to be an Agent.)
She sued, and the Service moved to dismiss. The court granted the motion to dismiss, ruling the claim nonjusticiable under Navy v. Egan (1988), insofar as the plaintiff's suit required the court to review the substantive agency decisions to investigate, suspend, or revoke her security clearance. But the court, applying a D.C. Circuit exception to Egan, denied the motion insofar as the suit alleged that agency employees acted with discriminatory or retaliatory motive by making false reports to agency decisionmakers, knowing that those reports were false.
The ruling means that the portion of the case relating to agency employees making false or discriminatory reports can go forward, even as the portion of the case relating to the substantive decision to revoke the plaintiff's security clearance is dismissed.
Monday, August 26, 2013
Judge Ellen Segal Huvelle (D.D.C.) ruled today in Bernstein v. Kerry that a group of Americans living in Israel lacked standing to challenge the U.S. government's funding of the Palestinian Authority. Relying heavily on Clapper v. Amnesty International (2013), Judge Huvelle ruled that the plaintiffs' fear of terrorist attacks was not a sufficient injury, that it wasn't fairly traceable to U.S. funding of the Palestinian Authority, and that changing U.S. funding policies wouldn't necessarily reduce their fears.
The ruling means that the case is dismissed. Judge Huvelle didn't rule on the government's political question defense or its its argument that the plaintiffs had no clear right to relief under the Mandamus Act, the basis for their suit.
The plaintiffs argued that the government violated laws that barred the use of U.S. funds to support a Palestinian state unless the Secretary of State determined and certified to Congress that the Palestinian Authority and any governing entity of a new Palestinian state satisfied certain requirements to pursue regional peace and to counter terrorism and that funding was in the U.S. interest.
Judge Huvelle held that the plaintiffs had no support for their view that "subjective emotional response to the possibility of an invasion of a legally-protected interest constitutes an injury-in-fact." Op. at 6. Indeed, she wrote that "a host of cases . . . hold the opposite." Id. (quoting Clapper (a "subjective fear of surveillance does not give rise to standing")). Judge Huvelle also held that the plaintiffs' "standing canot be based on plaintiffs' interest, common among all citizens, in the government following the law." Op. at 8.
Judge Huvelle also held that the plaintiffs failed to show causation and redressability.
Monday, August 5, 2013
Recall that the district court dismissed the case for lack of standing and for raising a political question. The defendants in their brief raised those issues and another ground for dismissal: the claims are barred by the Speech or Debate Clause. The defendants said that "[u]nder that Clause, Senate officers are absolutely immune from suit for any actions assisting the Senate in carrying out debate under its rules because such acts fall squarely within the sphere of legitimate legislative activity protected from questioning by the Clause." Brief of Appellees at 21.
Common Cause responded:
Actions that violate the Constitution are not "within the sphere of legitimate legislative activity"--they are ultra vires. As the Supreme Court held in Powell, Dombrowski and Kilbourn, "legislative employees who participated in the unconstitutional activity" are not immune from suit under the Speech or Debate Clause and are "responsible for their acts." Powell.
Reply Brief at 30.
Friday, August 2, 2013
The D.C. Circuit ruled today in Nader v. FEC that Ralph Nader lacked standing to sue to compel FEC enforcement against various organizations for violating election laws during their efforts to keep him off the presidential ballot in 2004.
Nader filed an administrative complaint with the FEC alleging that these organizations violated election laws in trying to keep him off the ballot. The FEC dismissed the complaint, and Nader sued. The district court granted summary judgment against Nader. In its ruling today, the D.C. Circuit held that he lacked standing to sue.
The court said that Nader lacked competitor standing, because he couldn't show that the FEC's determination injured his ability to fight the next election--becuase he didn't allege with certainty that he would actually run in the next election. The court said that he lacked informational standing, because he wasn't seeking information "related to [his] informed participation in the political process." Op. at 5. Instead, he was seeking to force the FEC to "get the bad guys," op. at 5, and to support his on-going litigation growing out of the 2004 election.
Tuesday, July 23, 2013
The D.C. Circuit struck a congressional act that required the State Department to include "Israel" on the passport of any U.S. citizen born in Jerusalem. The court in Zivotofsky v. Secretary of State ruled that the law interfered with the President's exclusive power to recognize foreign countries.
The case will likely go (back) to the Supreme Court, this time on the merits. This is a significant separation-of-powers case, with important implications, and even if the Court ultimately agrees with the D.C. Circuit, it'll almost certainly want to put its own stamp on the substantive questions.
The problem was that long-standing State Department policy and practice did not recognize Jerusalem as part of Israel. The Foreign Affairs Manual, the State Department regs, reflected this, saying that passports issued to U.S. citizens born in Jerusalem should use just "Jerusalem" as the place of birth, not "Jerusalem, Israel," or "Israel."
Congress moved to direct the State Department to use "Israel," however, as part of its broader effort in 2002 to change U.S. foreign policy and identify Jerusalem as the capital of Israel. President Bush signed the larger bill, but issued a signing statement on those portions of the bill, including the portion that required the use of "Israel" on passports of U.S. citizens born in Jerusalem, saying that those portions interfered with the President's foreign affairs powers.
Zivotofsky was born in Jerusalem to U.S. citizens. His parents sought to designate his place of birth as "Jerusalem, Israel," on his passport, but the State Department refused. The Zivotofskys sued, and after going up and back to the Supreme Court, the case landed again in the D.C. Circuit.
The D.C. Circuit started with the so-called recognition power--the power to recognize foreign countries. The court reviewed the original intent, early and later practices, and Supreme Court rulings on the recognition power and found that it belonged to the President alone. (It found original intent inconclusive, however.)
It said that Congress's attempt to require the use of "Israel" interfered with that power and thus struck the provision.
The court rejected Zivotofsky's argument that Congress has a "passport power" that it properly exercised here. The court said that, whatever the extent of its passport power, Congress was quite obviously trying to do more than just regulate the contents of passports here: it was trying to set U.S. foreign policy. The court said that this interfered with the President's power to recognize foreign countries.
The court also rejected Zivotofsky's argument that the use of "Israel" didn't affect foreign affairs or recognition, because the State Department used the country-of-birth simply to identify the passport holder. The court said that the State Department said that this would affect foreign affairs, and that it's not the court's place to second-guess the executive branch on this.
(The court also said that President Bush's signing statement was irrelevant to its analysis, and that Zivotofsky's argument that the State Department policy discriminates against supporters of Israel was waived.)
Judge Tatel, concurring, came to the same conclusion, but started with the passport power. Judge Tatel argued that the passport power, whatever it is, can't interfere with the President's recognition power.
July 23, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, July 18, 2013
Judge Rosemary M. Collyer (D.D.C.) earlier this week rejected hunger-striking Guantanamo detainees' suit for an injunction against the government to stop it from force-feeding them. The ruling in Aamer v. Obama is the second recent case coming out of the federal courts rejecting an anti-force-feeding claim. Here's our post on the first.
Judge Collyer, like Judge Kessler in the earlier case, ruled that the court lacked jurisdiction under 28 U.S.C. Sec. 2241(e)(2), which deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo.
Judge Collyer went on to address the merits, too. She wrote that the government is "responsible for taking reasonable steps to guarantee the safety of inmates in their charge," that there is no right to suicide or assisted suicide, and that the government has a legitimate penological interest in preventing suicide. Moreover, she wrote that the government has put controls in place so that the procedure really isn't so bad, and that the government made adjustments to the force-feeding schedule for the Ramadan fast.
July 18, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Nasser al-Awlaki writes in the NYT today that "[t]he Obama administration must answer for its actions and be held accountable" for the targeted killing of his grandson, Abdulrahman. Al-Awlaki is also the father of Anwar al-Awlaki, also targeted and killed in a drone strike.
Al-Awlaki writes just a day before the United States District Court for the District of Columbia will hear oral arguments on the government's motion to dismiss his case (on Friday). [UPDATE: The argument is tomorrow, Friday.] We previously posted on that case here; the Center for Constitutional Rights has its case resource page here. The government argues that the issue is a political question, that special factors counsel against a monetary damages remedy, and that officials enjoy qualified immunity.
Al-Awlaki's earlier suit, to stop the government from killing his son Anwar, was dismissed. That court ruled that al-Awlaki lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions.
Here's our post on the DOJ white paper, the administration's analysis (leaked) on why targeted killing of U.S. citizens is legal.
Friday, July 12, 2013
A three-judge panel of the Fourth Circuit upheld the employer mandate in the Affordable Care Act. The ruling in Liberty University v. Lew deals a significant blow to challengers of the Act's requirement that large employers provide affordable health care coverage to full-time employees and dependents or pay a fine. Unless and until it's appealed to the full Fourth Circuit and the Supreme Court--and unless and until one or the other reverses--the ruling upholds the employer mandate.
The ruling is notable, because it says that Congress had authority under the Commerce Clause to enact the employer mandate. (Recall that five Justices on the Supreme Court said last summer in National Federation of Independent Business v. Sebelius that Congress exceeded its authority under the Commerce Clause to enact the individual mandate.) What's the difference? See below.
The case is a hold-over from the Supreme Court's ruling last summer in National Federation of Independent Business v. Sebelius. Recall that the Court in that case held that the Anti-Injunction Act did not bar a the suit challenging the individual mandate, and that the individual mandate was a valid exercise of Congress's taxing power. The Court also remanded Liberty University to the Fourth Circuit for a ruling consistent with NFIB. (The Fourth Circuit previously held that the Anti-Injunction Act deprived it of jurisdiction to rule on the merits and dismissed the case.)
The Fourth Circuit followed NFIB's lead and ruled that the employer mandate (like the individual mandate in NFIB) was not a "tax" for purposes of the Anti-Injunction Act. (The court also ruled that Liberty University had standing to lodge its pre-enforcement challenge of the employer mandate, and that the individual named plaintiffs had standing to challenge the individual mandate.)
On the merits, the court ruled that the employer mandate is a valid exercise of Congress's Commerce Clause authority. (Recall that five members of the Supreme Court in NFIB said that the individual mandate exceeded Congress's Commerce Clause authority, even if it fell within Congress's taxation power.) What's the difference between the employer mandate and the individual mandate? In short, unlike individuals who have not purchased health insurance, employers operate in interstate commerce, and health insurance is part of their employees' compensation package, which itself is regulable under the Commerce Clause. The Fourth Circuit explained:
To begin, we note that unlike the individual mandate . . . the employer mandate does not seek to create commerce in order to regulate it. In contrast to individuals, all employers are, by their very nature, engaged in economic activity. All employers are in the market for labor. And to the extent that the employer mandate compels employers in interstate commerce to do something, it does not compel them to "become active in commerce," [NFIB, emphasis in original]; it merely "regulate[s] existing commercial activity," id., i.e., the compensation of employees . . . .
Further, contrary to Liberty's assertion, the employer mandate does not require employers to "purchase an unwanted product." . . . Although some employers may have to increase employee compensation (by offering new or modified health insurance coverage), employers are free to self-insure, and many do.
(Interestingly, the court dropped a footnote, note 7, that says, "We express no opinion as to whether the limitation on the commerce power announced by five justices in NFIB constitutes a holding of the Court." We covered that topic here.)
Following NFIB, the court also upheld the individual mandate under Congress's taxing power, and applied that ruling to uphold the employer mandate under Congress's taxing power.
The court also rejected the plaintiffs' religion claims--based on the First and Fifth Amendments (equal protection) and the Religious Freedom Restoration Act.
July 12, 2013 in Cases and Case Materials, Commerce Clause, Congressional Authority, Establishment Clause, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion, Taxing Clause | Permalink | Comments (0) | TrackBack (0)
The Ninth Circuit ruled this week in Townley v. Miller that plaintiffs lacked standing to challenge a Nevada law that allows voters to choose "None of these candidates," but does not count those votes in determining an election winner.
The ruling means that the case is dismissed and the challenge to the NOTC law goes away. NOTC stays on the books in Nevada. It's not obvious that the plaintiffs had any serious claim on the merits, anyway.
Nevada's NOTC law allows voters to register their preference for none-of-the-above by ticking the box for "none of these candidates" on an election ballot. The state counts these votes and reports them, but it doesn't use them to determine the winner of the election. Instead, these votes are treated as blank votes. Their value is in publicizing the extent of voter discontent with the named options on the ballot.
Plaintiffs challenged that portion of the NOTC law that says that NOTC votes aren't counted in determining the winner of an election. They said that this provision disenfranchises them--because it means that their NOTC votes don't count.
The Ninth Circuit dismissed the case, ruling that the plaintiffs lacked standing. Seven of the plaintiffs didn't say in the complaint that they had or would vote NOTC, and the court concluded that they didn't assert a sufficient injury in fact. Two plaintiffs said they would vote NOTC, but the court said that their case wouldn't redress their alleged harm. Those two plaintiffs asked the court to strike the NOTC option from the ballot entirely, and not just to order the state to count NOTC votes. The court said that this would only disenfranchise them more, not redress their claimed disenfranchisement. The remaining plaintiffs alleged competitive standing--standing based on a candidate's or party's challenge to the inclusion of an ineligible rival on the ballot--but the court said that their injuries (if any) were not caused by the NOTC law and that their cases wouldn't redress any of their alleged injuries. The problem was that these plaintiffs conceded the legality of the NOTC option on the ballot--"the voter option that would have a siphoning effect," op. at 16--and therefore failed to connect their injuries to their claim and requested relief.